In re Moore, No. 06-0544, 235 S.W.3d 210  (Tex. Aug. 31, 2007)(per curiam)
(
SAPCR, sanctions in child custody dispute between parent and non-parent vacated by mandamus)
Without hearing oral argument, we hold that the court of appeals abused its
discretion in issuing sanctions against Moore, and conditionally grant the writ of
mandamus.
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In re Michelle Moore, 235 S.W.3d 210 (Tex. 2007)(orig. proc.)
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On Petition for Writ of Mandamus

PER CURIAM

Michelle Moore and Lisa Denise Santos have been opposing parties in a series of lawsuits and original
proceedings relating to custody of I.E.T., Santos’s child. In all three suits, Moore, the child’s alleged paternal
grandmother, was awarded possession or joint conservatorship of the child at the trial court level, although
those decisions were later reversed by the court of appeals. Ultimately, the court of appeals awarded
custody to Santos and ordered Moore to pay Santos $47,178.50 for her attorney’s fees and costs in the
various proceedings as a sanction. We hold that the court of appeals abused its discretion by imposing
sanctions against Moore under the facts presented, and conditionally grant the writ of mandamus.

On December 12, 2004, Santos gave birth to I.E.T. Although Santos was married to another man, she had
been living with Moore’s son. Santos and I.E.T. initially moved in with Moore. Ten days after I.E.T.’s birth,
Moore filed a Suit Affecting Parent-Child Relationship (“SAPCR1”), in the 94th District Court of Nueces
County, claiming to be I.E.T.’s paternal grandmother. The trial court issued a temporary restraining order
preventing Santos from removing I.E.T. from Moore’s possession and on January 18, 2005, granted
temporary custody of I.E.T. to Moore. Approximately two and a half months after her birth, I.E.T. was
diagnosed with a disorder that required her to be fed through a nasogastric tube and necessitated a
complex medical regime, which Moore was trained to administer.

On May 26, 2005, Santos filed a petition for writ of mandamus in the court of appeals, alleging Moore
lacked standing to bring SAPCR1. On June 16th, the court granted the writ, holding that Moore lacked
standing because she was not listed in the Texas Family Code as a party who could initiate a SAPCR. The
court ordered the district court to dismiss the suit for lack of jurisdiction. In its memorandum opinion, the
court denied Santos’s request to order a hearing in the trial court on Santos’s motion for attorney’s fees
and sanctions, holding that Moore was entitled to a presumption of good faith and that there was no
evidence of bad faith or harassment. Despite the ruling, Moore refused to give up possession of I.E.T.

The next day, Santos filed suit (“Santos’s suit”), requesting that the 214th District Court of Nueces County
grant a writ of habeas corpus for possession of I.E.T. Three days later, Moore filed suit in the 319th District
Court (“SAPCR2”), alleging standing under the Texas Family Code as a person in possession of the child
for at least six months, a different basis than in SAPCR1. In Santos’s suit, the trial court denied Santos
habeas corpus relief and issued an interim order transferring the proceedings to the 319th District Court,
while in SAPCR2, the trial court issued a temporary restraining order preventing Santos from removing I.E.
T. from Moore’s possession.

On July 8, 2005, Santos again filed a petition for writ of mandamus in the court of appeals, this time with
regard to the orders issued in SAPCR2. A little more than a month later, Santos filed another petition for writ
of mandamus in the court of appeals challenging the orders issued in Santos’s suit. On August 29, 2005,
the court of appeals granted both writs and ordered both trial courts to vacate their orders. The court
dismissed SAPCR2 for lack of jurisdiction and granted the writ of habeas corpus in Santos’s suit, giving
possession of I.E.T. to Santos. Moore surrendered custody.

The court of appeals also ordered Moore to pay Santos’s court costs and attorney’s fees incurred in
SAPCR1, Santos’s suit, and SAPCR2. The court noted:

[G]iven that relator’s expenses in having to retain counsel and file pleadings in multiple courts have been
solely caused by Moore’s intransigence and disregard for the previous judgment of this Court, we order that
Moore pay all of relator’s court costs and attorneys fees incurred for Cause Nos. 04-07301-C, 05-03094-G
and 05-3089-F.

The court cited Texas Rule of Appellate Procedure 43.6 in support of its ruling.

On September 1, 2005, Moore filed a petition for writ of mandamus in this Court requesting that we vacate
all of the orders entered by the court of appeals. We denied the petition without issuing an opinion. On May
4, 2006, Santos filed in the court of appeals a Motion Requesting Order for Payment of Attorney Fees as
Sanctions against the Real Party in Interest. The court granted the motion on June 22, 2006, issuing an
order for Moore to pay Santos $47,178.50 for her attorney’s fees and costs at both the trial and appellate
level. In response, Moore filed this petition requesting that we order the court of appeals to withdraw its
sanctions order and award.

Moore argues that neither Texas Rule of Appellate Procedure 43.6 nor any statute authorizes the
imposition of sanctions by a court of appeals. Moore further contends that only trial courts have the
inherent authority to issue sanctions in the form of attorney’s fees, arguing that courts of appeals lack that
inherent authority due to their limited original jurisdiction. Santos contends the sanctions order was issued
under the court of appeals’ inherent authority, with further authority found in Rule 43.6. In addition, Santos
argues that there is no indication that the court of appeals imposed the order as a sanction.

We disagree with the latter contention. The order awarding the fees and costs specifically granted Santos’s
motion requesting their payment as a sanction. Moreover, the language in the court of appeals’ opinion
leaves no doubt that the court imposed the fees and costs to penalize Moore for filing SAPCR2 after it had
found that she lacked standing in SAPCR1. Assuming without deciding that the court of appeals had the
authority to issue the sanctions order, we conclude the court nonetheless abused its discretion in doing so.
In imposing the sanctions, the court failed to acknowledge that Moore, by having constant physical custody
of I.E.T. for six months, alleged standing on a different ground in SAPCR2. Thus, Moore did not act
inconsistently with the court of appeals’ standing ruling in SAPCR1 in filing SAPCR2. Moreover, the court of
appeals’ characterization of Moore’s conduct as “intransigence” is unfounded given that she at all times
subjected herself and I.E.T. to the jurisdiction of the trial courts, sought their decisions, and followed their
rulings. The trial courts declined to remove I.E.T. from Moore’s custody. Accordingly, there is no basis for
the court of appeals’ imposition of sanctions on the record before us.

Without hearing oral argument, we hold that the court of appeals abused its discretion in issuing sanctions
against Moore, and conditionally grant the writ of mandamus. Tex. R. App. P. 52.8. The writ will issue only if
the court of appeals fails to vacate its orders of August 29, 2005 and June 22, 2006 regarding Santos’s
court costs and attorney’s fees.

Opinion Delivered: August 31, 2007